State of Utah v. Hollen
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
Plaintiff and Appellee,
v.
Philip E. Hollen,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981128-CA
F I L E D
April 22, 1999
1999 UT App 123
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Third District, Salt Lake Department
The Honorable Sandra Peuler
Attorneys:
Karen Stam and Catherine E. Lilly,
Salt Lake City, for Appellant
Jan Graham and Catherine M. Johnson,
Salt Lake City, for Appellee
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Before Judges Bench, Jackson, and Orme.
ORME, Judge:
¶1
Appellant Philip E. Hollen, one
of the Million Dollar Saloon "clown bandits," challenges his conviction
for aggravated robbery, a first degree felony, in violation of Utah Code
Ann. § 76-6-302 (1995).(1) We reject
his contention that the evidence was insufficient to sustain the "taking"
element of a robbery offense and affirm his conviction.
BACKGROUND
¶2
On appeal from a jury verdict, we
recite the facts and draw inferences in the light most favorable to the
verdict. See State v. Brandley, 972 P.2d 78, 79 (Utah Ct.
App. 1998); State v. Gibson, 908 P.2d 352, 354 (Utah Ct. App. 1995),
cert. denied, 917 P.2d 556 (Utah 1996).
¶3
In the early hours of September
24, 1995, two men, later identified as Hollen and Jeffrey Devon Mecham,
set about to enrich themselves at the expense of the Million Dollar Saloon.
The two arrived at the saloon just after it closed at around 2:00 a.m.,
quickly donned homemade clown costumes (baggy pants with "magic marker"
polka-dots and, in preference to the more traditional clown make-up, actual
clown masks), grabbed some roses, and proceeded to the saloon's west entrance.
After hearing the doorbell, a bartender opened the door and the pair entered.
Upon entering, the clowns began handing out roses to those employees and
their guests still inside the saloon.
¶4
Suspecting from the quality of the
costumes, the hour, and the peculiar flower giveaway that some mischief
was afoot, a dancer at the saloon slipped to the front lobby and called
911. Meanwhile, the bouncer, Walter Finley, and the manager, Chris Stanley,
approached the clowns and asked them to leave. As Finley and Stanley escorted
the clowns to the door, one clown (determined later to be Hollen) turned
around, pointed a gun in their faces, called Finley by his nickname, "Tex,"
and said they were going to rob the place. The other clown ordered the
saloon's remaining occupants to move to the area of the "buddy bar" and
get down on the floor.
¶5
Hollen learned that Stanley was
in charge and asked him where the saloon kept its money. Stanley answered
that the money was kept in the back room, and the clowns ordered the occupants
to move toward that area, which they did. Stanley testified that Hollen
"pointed the gun towards my face and told me . . . he wanted to get the
money, and that if I gave him any trouble, that he was going to pop me."
As the other clown watched the remaining occupants, Hollen directed Stanley
into the back room.
¶6
Hollen entered the back room first
and gave Stanley a black nylon tote bag. As Stanley recounted, Hollen "instructed
me to open the safe. I opened the safe. [He] told me to put the money in
the bag. I started to . . . put the money in the bag." Stanley then placed
approximately $3,000 in the bag from one of three safes. When Hollen noticed
two additional safes, he told Stanley to open them. As Stanley was explaining
that he was new and unable to open the other safes, the phone rang. At
Hollen's direction, Stanley answered the phone. A Sheriff's Department
dispatcher was on the line and informed Stanley that an officer was outside
and that he should open the building's west door. Stanley said he was unable
to comply at that time and hung up. Hollen asked who was on the phone and
placed the gun to the side of Stanley's head to expedite an answer. Stanley
replied, "That was the Sheriff's Department on the phone. They are outside
and they know that you're here." With this unwelcome news, Hollen panicked
a bit and took Stanley back to where the others were waiting. The bag of
money, however, was left in the back room, and Hollen never personally
touched it.
¶7
Subsequent events do not bear on
the single issue on appeal in this case, although it should be mentioned
that as the clowns tried to get away, a gun battle ensued in which both
Hollen and Sheriff's Sergeant Michael Julian were wounded. A trail of clown
wear led eventually to the discovery of Mecham in a nearby dumpster. In
an ambulance en route to the hospital, Hollen admitted that he was the
clown who took Stanley to the back room.
¶8
The State charged Hollen with, inter
alia, one count of aggravated robbery in an information which read, in
relevant part, as follows:
AGGRAVATED ROBBERY, a First
Degree Felony,
. . . on or about September 24, 1995, in violation of Title 76, Chapter 6, Section 302, Utah Code Annotated 1953, as amended, in that the defendants JEFFERY DEVON MECHAM and PHILIP EARL HOLLEN, as parties to the offense, unlawfully and intentionally took personal property in the possession of Million Dollar Saloon from the person or immediate presence of the manager of Million Dollar Saloon . . . . At trial, after the close of evidence, the jury was similarly instructed that to find Hollen guilty of aggravated robbery, it must find beyond a reasonable doubt that he unlawfully and intentionally "took" the saloon's money. The instructions did not define "took," and Hollen neither objected to this omission nor offered a definition of his own. The jury found Hollen guilty of aggravated robbery. Hollen appeals.
ISSUE AND STANDARD OF REVIEW
¶9
Hollen requests reversal of his
aggravated robbery conviction, arguing the evidence was insufficient to
support a finding that he "took" property as described in the information.
"When examining the sufficiency
of the evidence in a criminal jury trial, we begin with the threshold issue
of statutory interpretation, which we decide as a matter of law. With regard
to the facts, 'we review the evidence and all inferences which may reasonably
be drawn from it in the light most favorable to the verdict of the jury.'
Under this standard, we will reverse a conviction only when the evidence,
viewed in light of our interpretation of the statute, 'is sufficiently
inconclusive or inherently improbable that reasonable minds must have entertained
a reasonable doubt that the defendant committed the crime of which he [or
she] was convicted.'"
State v. Fisher, 972 P.2d 90,
97 (Utah Ct. App. 1998) (alteration in original) (citations omitted).
ANALYSIS
¶10
Our Legislature has defined aggravated
robbery as using or threatening to use a dangerous weapon in the course
of committing a robbery. See Utah Code Ann. § 76-6-302 (1995).
"A person commits robbery if . . . the person unlawfully and intentionally
takes
or attempts to take personal property in the possession of another
from his person, or immediate presence, against his will, by means of force
or fear . . . ." Utah Code Ann. § 76-6-301(1)(a) (Supp. 1998) (emphasis
added). Assuming, without deciding, that his conviction may stand only
if Hollen completed the taking,(2) we conclude
such taking was complete when he exercised control over the $3,000 by threatening
deadly force and causing the manager to remove the money from the safe
and place it in the bag.
¶11
This court recently interpreted
an earlier version of section 301 in resolving a similar challenge. See
In re D.B., 925 P.2d 178, 180-82 (Utah Ct. App. 1996). In D.B.,
the juvenile defendant argued he had not committed robbery because the
victim voluntarily gave the defendant initial possession of the property
and the defendant used no force or intimidation until the victim asked
for the property's return. See id. at 179, 181. This court rejected
that argument, holding that for robbery, the use of force or fear may occur
"at any time prior to or concurrent with" the taking. Id. at 181-82.
In so ruling, we essentially equated the victim's loss of the ability to
exercise control over the property with a taking for purposes of the robbery
statute. See id. at 181 ("[T]here is no 'taking' from the immediate
presence of another until the victim loses the ability to exercise control
over the property.").
¶12
This court was not asked in D.B.
whether the exercise of control consummating a taking necessarily includes
some physical touch or literal manual possession by the defendant. Many
other courts have understandably concluded that it does not. See, e.g.,
Young v. State, 347 So. 2d 1011, 1015 (Ala. Crim. App. 1977) (Although
the robbery victim "'was present at all times[,] . . . his status was that
of a robot [and h]is dominion over the automobile was completely negatived
by the will and pistols of the appellants.'") (citations omitted); State
v. Hitchcock, 350 P.2d 681, 686 (Ariz. 1960) ("[E]vidence that the
articles were removed from the victim's office at gun point by the direction
of defendant is a sufficient taking to sustain the conviction of robbery
under the statute."), cert. denied, 365 U.S. 609 (1961);
State
v. Aro, 937 P.2d 711, 714 (Ariz. Ct. App. 1997) ("[W]e conclude that
'taking' under the present robbery statute means obtaining possession of
or dominion over property, and does not require that the property be moved.");
People v. Quinn, 176 P.2d 404, 405 (Cal. Dist. Ct. App. 1947) (Robbery
"requires the taking of personal property . . . but does not require that
this be done by the use of the hands of the person doing the taking.");
People v. James, No. 97CA1466, 1998 Colo. App. LEXIS 268, at *9
(Colo. Ct. App. Oct. 29, 1998) ("[I]t has uniformly been held that, for
purposes of the crime of robbery, the required 'taking' need not be accomplished
by the personal asportation of the robber. Rather, if the robber forces
another to 'take' the property, a robbery has occurred."); Johnson v.
State, 432 So. 2d 758, 759 (Fla. Dist. Ct. App. 1983) ("[I]t is not
necessary that the property be taken into the hands of the robber . . .
."); State v. Beatty, 617 S.W.2d 87, 90 (Mo. Ct. App. 1981) ("It
is no less a taking simply because the property is physically taken and
moved by another person, even the victim who acts only under the robber's
direction and control."). As a leading treatise explains, "[i]n no event
is it necessary that the defendant take manual possession of the property;
he need only assume control of the property." 4 Wharton's Criminal Law
§ 457, at 14 (15th ed. 1996). See also Black's Law Dictionary
1453 (6th ed. 1990) ("The element of 'taking' in robbery does not require
robber's manual possession of property; it is sufficient if robber has
acquired dominion and control over property."). We readily agree with this
persuasive authority.
¶13
Here, the evidence shows that although
Hollen did not personally remove the money from the safe or place it in
his bag, he accomplished the same end when he coerced this very conduct
from Stanley at the point of a gun. We see no appreciable difference between
the control Hollen would have exercised had he removed the money from the
safe personally and the control he exercised by directing Stanley.(3)
In following the authority outlined above, we avoid the "strange result"
where "differing scenarios which are based on the same action, the same
intent, and the same danger to other people would lead to differing crimes
and penalties." D.B., 925 P.2d at 181-82. Cf. State v.
Lopez, 520 P.2d 213, 213 (Utah 1974) ("[T]he defendant's actions and
intent and the custodial features involved here impress us with a conclusion
that technical touching and taking or asportation and such are minutiae,
and should not be dispositive of the clear import of the statute . . .
."). Accordingly, we hold defendant Hollen completed the requisite taking
for purposes of the charged aggravated robbery.
CONCLUSION
¶14
We reject Hollen's claim that the
evidence was insufficient to support the jury's verdict that he was guilty
of aggravated robbery as alleged in the information filed against him.
The evidence clearly showed, and Hollen does not dispute, that he directed
the manager, at gunpoint, to remove money from the safe and place it in
a bag. In so doing, Hollen exercised the requisite control over the Million
Dollar Saloon's property to complete the element of taking as required
by statute and described in the information.
¶15
Affirmed.
______________________________
Gregory K. Orme, Judge
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¶16
WE CONCUR:
______________________________
Russell W. Bench, Judge
______________________________
Norman H. Jackson, Judge
1. Although the jury also found Hollen guilty of two counts of aggravated assault, third degree felonies under Utah Code Ann.
§ 76-5-103 (Supp. 1998), and lesser included offenses of the two originally charged counts of attempted aggravated murder, he does not appeal those convictions.
2. While he concedes the evidence was sufficient to convict him under the broader statutory definitions, which do not require a completed taking, see State v. Hickman, 779 P.2d 670, 671-72 (Utah 1989) (per curiam); In re D.B., 925 P.2d 178, 181-82 (Utah Ct. App. 1996), Hollen argues the State is bound by the information, which described his culpable conduct as involving a completed taking with no mention of the "attempts to take" phraseology. However, because we conclude the evidence was sufficient to prove that Hollen indeed completed a taking as alleged in the information, we need not consider this argument further, other than to note that a similar argument was recently treated in State v. Preece, 971 P.2d 1, 4-6 & n.8 (Utah Ct. App. 1998).
3. It would certainly have been appropriate for the trial court to instruct the jury to employ this broad definition of "taking." However, Hollen may not predicate reversible error on this omission when he failed to either object below or offer an instruction with such a definition. See State v. Kiriluk, 362 Utah Adv. Rep. 19, 23 (Utah Ct. App. 1999) (holding issue of omitted jury instruction was not preserved below and was invited error, outside the manifest injustice exception, where defendant failed to object or provide the instruction). Moreover, the omission, if anything, was to Hollen's advantage because without the jury being instructed about the appropriately broad definition of "taking," Hollen at least had a shot at the jury employing a more literal, restrictive definition and acquitting him on that basis. Had it been more fully instructed about what "taking" means in this context, Hollen's conviction would only have been more certain. Thus, any error in not giving such an instruction would be harmless in this case.
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